Police interrogation: Do you know your lawyer can be present?

Law enforcement officials are required to warn criminal suspects that they have a right to remain silent and a right to talk to a lawyer before an interrogation. But what happens if the police fail to mention a suspect’s right to have a lawyer present during the interrogation?

That’s the question at the center of a case set for argument at the US Supreme Court on Monday.

At issue in Florida v. Powell is whether the Florida Supreme Court ruled correctly when it threw out Kevin Dewayne Powell’s gun possession conviction because police failed to advise him of his right to have a lawyer with him to offer advice during his interrogation.

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Mr. Powell was arrested in August 2004 by Tampa police during a robbery investigation. Police found Powell at his girlfriend’s apartment. During a search they found a loaded pistol under a bed.

Powell was a convicted felon with ten prior offenses and could not lawfully be in possession of a firearm.

After discovering the gun, police arrested Powell and took him to headquarters for questioning. Prior to the interrogation police read Powell his Miranda warnings. They included the sentence: “You have the right to talk to a lawyer before answering any of our questions.” The warning also included: “You have the right to use any of these rights at any time you want during this interview.”

He confessed to owning the gun

Powell waived his right to remain silent and confessed that the pistol belonged to him. He later went to trial and testified that his confession was false and had been coerced by police. He said the loaded pistol was not his.

Instead, he told the jury that the officers threatened that if he didn’t admit to the gun charge they would charge his girlfriend with a crime, expel her from public housing, and have her children taken away from her. The jury found Powell guilty and he was sentenced to 10 years in prison.

On appeal, his lawyer argued that police gave a confusing version of the Miranda warnings prior to his interrogation and the alleged confession. The appeals court agreed, throwing out the confession and overturning his conviction. The Florida Supreme Court affirmed.

The state high court said that informing a suspect of his right to consult a lawyer before answering any questions did not adequately advise the suspect of his additional right to have an attorney present throughout the interrogation.

“The ‘before questioning’ warning suggests to a reasonable person in the suspect’s shoes that he or she can only consult with an attorney before questioning; there is nothing in that statement that suggests the attorney can be present during the actual questioning,” the Florida Supreme Court said in its ruling.

Florida’s Chief Assistant Attorney General, Robert Krauss, is asking the US Supreme Court to overturn the Florida high court decision and declare that the Miranda warnings given to Powell reasonably conveyed his rights.

'Unduly technical' decision

“The decision below rested on an unduly technical and inflexible approach to reviewing the sufficiency of Miranda warnings,” Mr. Krauss writes in Florida’s brief to the court. If upheld, he said, the Florida decision would “frustrate the search for truth in criminal proceedings.”

US Solicitor General Elena Kagan filed a brief on behalf of the Obama administration siding with the Florida attorney general’s office. She says the warnings given to Powell were sufficient.

Ms. Kagan said that federal law enforcement agencies follow a policy of explicitly telling suspects: “You have the right to have a lawyer with you during questioning.”

She said this was “sound law enforcement practice” that fulfills the purposes of Miranda in “the most efficient and effective manner.”

But also she said the warnings given to Powell by Tampa police conveyed enough information to pass constitutional muster.

“As a constitutional matter,… the warnings read to [Powell] adequately advised him that he had the right not only to speak with counsel before questioning, but also to turn to his lawyer for help at any time, including during the interview,” she writes in her brief.

Powell’s lawyers disagree. They say federal courts that have examined Miranda warnings similar to Powell’s have found them deficient. The lawyers add that a survey of the various Miranda texts used in 900 jurisdictions in 49 states found only five advising of a right to a lawyer before questioning without also advising of a right to counsel during questioning.

“The Florida Supreme Court did not err in finding that the warning was misleading,” writes Assistant Public Defender Cynthia Dodge in Powell’s brief. She said the Florida court’s decision tracks the Miranda warning language adopted “by virtually every federal, state, and local law enforcement agency in the country.”

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